Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Guj) 638

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SANGEETA K. VISHEN, J.
DIPABEN W/O DHAVAL LAXMIKANT BHATT - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION NO. 11390 of 2021
Decided On : 20-10-2021

Advocates Appeared:
For The Appellant : MS.AVNIKA PANCHAL FOR MR VAIBHAV A VYAS
For The Respondent: MS.SURBHI BHATI, ASSISTANT GOVERNMENT PLEADER/PP

Point of Law : Transactions in respect of the movable and immovable properties of the patient, by the petitioner - guardian, shall be strictly in accordance with the provisions of law. If the petitioner - guardian is found to be abusing the power or neglects or acts contrary to the best interest of the patient lying in comatose state, it will be open to any relative or next friend to apply to this Court for removal of such guardian.

Headnote:
Constitution of India,1950 – Article 21 and 226 – Civil Procedure Code,1908 - Indian Lunacy Act, 1912 - Mental Capacity Act, 2005 -Treatment -Maintenance of patient - Petitioner, is wife of patient - According to petitioner, marriage of petitioner was solemnized with patient as per the Hindu rites and rituals at Rajkot - Petitioner is having two children - Husband of petitioner had suffered cardiac arrest and was immediately admitted to Hospital - Heart of the patient had stopped functioning and due to intermittent stoppage of functioning of heart, blood circulation to brain had stopped and patient had gone into coma and then is in coma - Owing to aforesaid, patient is not in a position to recognize anybody - Patient is unable to understand anything and not in a position to speak and/or move from the bed and is completely in a vegetative state - Whether it be for availing better treatment or otherwise.
Finding of the Court :
Petitioner – guardian, shall intimate her appointment to public official/Social Welfare Officer or officer of the equivalent rank designated by State Government - Petitioner - guardian as well as Registrar General, High Court of Gujarat, will cause a copy of this order of guardianship being served upon such officer - Such officer, shall visit person lying in comatose state at least once in a week and will generate report of his/her visit. If it is found that petitioner - guardian is not acting in the best interest of the patient lying in comatose state, such officer will be at liberty to file appropriate application before this Court at the earliest, seeking appropriate directions - In case a relative or a next friend of patient lying in a comatose state finds that guardian is not acting in the best interest of patient, such person will also have locus to approach this Court for issuance of appropriate directions and/or for removal of guardian - In case a relative or a next friend of patient lying in a comatose state finds that the guardian is not acting in the best interest of the patient, such person will also have the locus to approach this Court for issuance of appropriate directions and/or for removal of the guardian.
Result: Petition is partly allowed

JUDGMENT :

1. Issue Rule, returnable forthwith. Ms.Surbhi Bhati, learned Assistant Government Pleader waives service of notice of Rule on behalf of the respondent-State.

2. By this petition, inter alia, under Article 226 of the Constitution of India, the petitioner has sought for declaration that the petitioner i.e. Dipaben Dhaval Bhatt being wife of Dhaval Laxmikant Bhatt (hereinafter referred to as “the patient” as and when the context warrants) be appointed as a guardian who is in comatose state.

3. Tersely stated are the facts:

3.1 The petitioner, is the wife of the patient i.e. Dhaval Laxmikant Bhatt. According to the petitioner, the marriage of the petitioner was solemnized with the patient on 20.06.1991 as per the Hindu rites and rituals at Rajkot. The petitioner is having two children, daughter Trushti Dhaval Bhatt whose date of birth is 07.06.1998 and son Tej Dhaval Bhatt whose date of birth is 28.01.2000.

3.2 On 17.07.2014, the husband of the petitioner had suffered cardiac arrest and was immediately admitted to Wockhardt Hospital, Rajkot. The heart of the patient had stopped functioning and due to intermittent stoppage of functioning of heart, the blood circulation to the brain had stopped and therefore, the patient had gone into coma and since then, is in coma. Owing to the aforesaid, the patient is not in a position to recognize anybody. The patient is unable to understand anything and not in a position to speak and/or move from the bed and is completely in a vegetative state.

3.3 According to the petitioner, she being a housewife, has the responsibility of maintaining the patient i.e. her husband and is finding it extremely difficult, in absence of any other resource, to maintain the family and providing adequate life support and other medical treatment to the patient who was the sole bread earner. The petitioner has incurred heavy expenses towards the medical treatment and presently also treatment is being extended, and he being in a vegetative state, one person is required to take care of him round the clock. That the petitioner has exhausted all her financial resources and she and her family, are in the state of despair, isolation and abandonment.

3.4 It is the case of the petitioner that presently, the petitioner is staying with the patient at the residence of the elder brother of the patient. The patient, is having some movable and immovable properties and some bank deposits. Since the patient is completely in the state of coma, neither the petitioner nor the patient is in a position to deal with the properties, owing to various legal impediments.

3.5 Being aggrieved, the petitioner has filed the captioned writ petition seeking declaration that she be appointed as a guardian of the patient i.e. her husband namely Dhaval Laxmikant Bhatt, who is in the state of coma and unable to take care of himself.

4. Ms.Avnika Panchal, learned advocate for Mr.Vaibhav A. Vyas, learned advocate for the petitioner submitted that the patient i.e. husband of the petitioner had suffered a cardiac arrest and owing to which he is in the state of coma. It is submitted that the patient is neither in a position to understand anything, condition to speak nor is able to move and is completely bed ridden. It is also submitted that the patient is completely in a vegetative state and unable to take care of himself. It is submitted that the patient was the sole bread earner and petitioner being the wife of the patient has no other resource and is now finding it difficult to maintain the patient i.e. her husband inasmuch as she is running out of funds. The petitioner since finding it difficult to manage the funds, it is required that she be permitted to deal with the movable and immovable properties of the patient so as to take care of the medical expenses of the patient.

4.1 It is also submitted that this Court vide order dated 03.09.2021, was kind enough to direct the respondent No.2 Collector, Rajkot to constitute a team of experts to verify the